Winning—the simple secret

Some of my tribe have been worried because I haven’t posted for a while. You’ll recall I’ve been writing about slavery. We are all slaves. Each of us has a slave specialty—slave to work, slave to debt, slave to guilt, slave to social pressure, slave to habit, slave to sick relationships, slave to….I try to be free, and sometimes I won’t post for a while. You have given me that permission. Don’t worry. I may be taking a walk through the forest in the early mornings when I usually write. But it is good to be missed.

Speaking of forests, in a jury trial lawyers become guides to the jurors through a frightening forest. The jurors do not even know the person sitting next to them. They have never been in a courtroom before, this strange place where lawyers argue according to strange rules that do not make sense. The jurors do not know where justice lies. They do not know who to believe, both sides pointing their accusatory long white fingers at their opponent.

There is a judge looking down at them dressed in a black robe. Nothing grows in the courtroom. The place is barren of life. Lawyers with soft hands that seemingly have never done an honest day’s work talk in a strange language, one with incomprehensible words that have no other purpose than to put the jurors down. The jurors have worries of their own, their families, their jobs, their debts that grow while they sit and listen to this senseless blather. Still they know the stakes are high, a person’s freedom or life or well being are at stake, and the jurors want to do the right thing.

I have said that it is as if the juror is about to embark on a journey through this forest and he or she has to decide which lawyer, as a guide, to follow. That’s why the only thing a trial lawyer has to sell to jurors is credibility. Without it, the most skilled, the most charismatic, the most comely, the best dressed, the highest paid, the lawyer with the highest IQ, the lawyer from the largest firm, even the one the judge seems to favor cannot win without credibility. It is also why the lawyer who may be frightened, inept, less skilled, not so eloquent, even second rate and sometimes befuddled will win every time if he or she is a credible person.

I have been criticized for being “too superficial.” I suppose that means that my own intelligence quotient is dragging behind or at least isn’t on display. But remember, we can think our way to any decision. The reasoning of the U.S. Supreme Court is a good example. The court’s numerous five to four decisions tells us that about half the court have thought themselves into the wrong decision and do so continuously. We can think ourselves into oblivion. Science is already knocking on that door with its invention of nuclear weapons and the manufacture and use of devices that will surely destroy this fragile, pretty little planet.

Our worst enemy is our own species. We have the ability to lie to and cheat our own and to thereby seriously injure or destroy each other. But we are also equipped with what I call “psychic feelers” that tell us when someone is attempting to deceive us.

Our worst enemy is our own species. We have the ability to lie to and cheat our own and to thereby seriously injure or destroy each other. But we are also equipped with what I call “psychic feelers” that tell us when someone is attempting to deceive us. We can be hoodwinked for a day or two. But in a trial that lasts for any length of time, the jurors begin to understand, even on a subconscious level, who is the most trustworthy. Over the long haul, jurors usually can’t be fooled, and those who contend that this simple truth is superficial and does not give due credit to their own massive brain power will be those who use that same superiority to explain why they lost their last case, and the case before that.

I have often spoken of “the magic mirror.” It reflects who we are with each other. If the lawyer does not trust the jurors, the jurors will not trust the lawyer. If the lawyer does not like the jurors, the jurors will respond in kind. If the lawyer keeps secret his or her feelings the jurors will secret their own. If the lawyer hides behind big words and tricky tactics the jurors will turn away from him. How hard is this to understand? I keep insisting that our role models should be our children. I have often said I have learned more from my kids and my dogs than from all of the super minds out there.

So how can you win your next case? How can you win your next argument — in the courtroom or at home? How real and how credible can you be?

As a young tree in the great forest, my emotional response to your most recent posting moves me to recall your insightful comment: “One can stand as the greatest orator the world has known, possess the quickest mind, employ the cleverest psychology, and have mastered all the technical devices of argument, but if one is not credible one might just as well preach to the pelicans.”

Both, leave me with a stronger conviction to listen to my “psychic feelers.” Take your time – with a dog walk slowly, see, smell, hear, touch, taste, and appreciate.

Gerry:
I really appreciate your writing this blog and sharing your thoughts with us. It is your insight that makes me a better person, lawyer and friend. Even the downtrotten, the lowly and the beguiled have to have effective representation. I want to aspire to that level, to give of myself freely so that others may benefit. I represent individuals who can not pay money to have representation in the courts today and why shouldn’t they have the best of my abilities just like the individual who could pay unlimited money for my services. It is all about credibility and most lawyers don’t have that quality. Hope you keep writing, I’ll keep reading.

Some things that can affect credibility include the ability of powerful parties to use methods of investigation that can seem over-powering. New technology is available to intercept email, cell phone calls, surveillance, GPS tracking, etc.
Many people seem to forget that all telephone calls from a jail are recorded and saved for use later. All letters in and out are also saved. Trash surveillance and computer hacking is possible.
Sophisticated surveillance (sometimes illegal) is available to record conversations that people believe are confidential. The power of the government and others to obtain wire taps, cell phone records, GPS tracking, computer hacking, email records, all computer hard-drive revelations, and the possibility of access to computer searches on search engines (some searches are saved at the search engine center), and advancing technology —- can compromise credibility and privacy. Even cell phones can become video camera’s now. Point the right technology in the right direction and you can over-hear conversations. I am not advocating these methods, but necessity requires me to advise people of their actual existence and the easy availabilty of this technology. Still, people in jail call me collect and want to discuss the case while we are being recorded. Some will discuss their cases with their family while being recorded.

The only time I’ve had to cross my fingers that I sounded credible was when my mom came home from the store with an expensive , final sale and unreturnable new dress, modeled it for me and asked all excitedly: “Isn’t it pretty Stevie!” (Oh Lord….)